Chapter 6.00 DEFENSES Table of Instructions Instruction 6.01 Defense Theory 6.02 Alibi 6.03 Entrapment 6.04 Insanity 6.05 Coercion/Duress 6.06 Self-Defense 6.07 Justification 6.08 Fraud – Good Faith Defense 6.09 Entrapment by Estoppel 6.01 DEFENSE THEORY (1) That concludes the part of my instructions explaining the elements of the crime. Next I will explain the defendant's position. (2) The defense says ____________________________________________________________ ______________________________________________________________________________ _____________________________________________________________________________. Committee Commentary 6.01 (current through July 1, 2019) The Sixth Circuit has not reviewed this instruction directly. When a defense theory finds some support in the evidence and the law, the defendant is entitled to some mention of that theory in the district court's instructions. United States v. Duncan, 850 F.2d 1104, 1117 (6th Cir. 1988). The test for determining whether some mention of the defense theory must be included is not whether the evidence presented in support of the theory appears reasonable. Duncan, supra at 1117. "It is not for the judge, but rather for the jury, to appraise the reasonableness or the unreasonableness of the evidence relating to the [defense] theory." Id. (interior quotations omitted). Instead, the test is whether "there is any foundation in the evidence sufficient to bring the issue into the case, even if that evidence is weak, insufficient, inconsistent, or of doubtful credibility." Id. (interior quotations omitted). In United States v. O’Neal, 1999 WL 777307, 1999 U.S. App. LEXIS 23517 (6th Cir. 1999) (unpublished), the panel explained the law as follows: “Although a jury instruction ‘should not be given if it lacks evidentiary support or is based upon mere suspicion or speculation,’ if there is even weak supporting evidence, ‘[a] trial court commits reversible error in a criminal case when it fails to give an adequate presentation of a theory of defense.’” 1999 WL at 1, 1999 LEXIS at 3, quoting United States v. James, 819 F.2d 674, 675 (6th Cir. 1987) and United States v. Plummer, 789 F.2d 435, 438 (6th Cir. 1986). In O’Neal, the panel concluded that the trial court properly refused a defense instruction because it was not supported by the evidence. Where the proposed instruction does not state a distinct legal theory, the Sixth Circuit has held that an instruction need not be given and the issue should be left to argument. The court explained, “Although a district court is required to instruct the jury on the theory of defense, it is not error to refuse to give ‘instructions which merely represent a defendant’s view of the facts of the case,’ rather than a distinct legal theory.” United States v. Chowdhury, 169 F.3d 402, 407 (6th Cir. 1999) (quoting United States v. Frost, 125 F.3d 346, 372 (6th Cir. 1997)). See also United States v. Mack, 159 F.3d 208, 218 (6th Cir. 1998) (finding no error when trial court refused defense theory instruction because proposed instruction was not statement of law but rather denial of charges and it contained statements the defendant would have made if he had testified). As to the content of the defense theory instruction, the district court does not have to accept the exact language of a proffered instruction on the defense theory. United States v. McGuire, 744 F.2d 1197, 1201 (6th Cir.1984); United States v. Blane, 375 F.2d 249, 252 (6th Cir. 1967). It is sufficient if the court's instructions, as a whole, adequately cover the defense theory. Id. As stated by the Sixth Circuit in McGuire: A criminal defendant has no right to select the particular wording of a proposed jury instruction. As long as the instruction actually given is a correct statement of the law, fairly presents the issues to the jury, and is substantially similar to the defendant's proposed instruction, the district court has great latitude in phrasing it. McGuire, supra. The defense theory must, however, be stated "clearly and completely." Smith v. United States, 230 F.2d 935, 939 (6th Cir. 1956). 6.02 ALIBI (1) One of the questions in this case is whether the defendant was present _________________ _____________________________________________________________________________. (2) The government has the burden of proving that the defendant was present at that time and place. Unless the government proves this beyond a reasonable doubt, you must find the defendant not guilty. Committee Commentary 6.02 (current through July 1, 2019) Panels of the Sixth Circuit have endorsed Pattern Instruction 6.02 twice. In United States v. Lennox, 1994 WL 242411, 1994 U.S. App. LEXIS 13489 (6th Cir. 1994) (unpublished), the trial court gave Pattern Instruction 6.02, and the question was whether it was error to refuse defendant’s proposed additional statement that there is no negative implication to the word “alibi” and that an alibi is a proper and legitimate claim in a defense of an indictment. The panel held it was not error to refuse this statement because the Pattern Instruction made it “abundantly clear” that the government continuously bore the burden of proof beyond a reasonable doubt. Lennox, 1994 WL at 5, 1994 LEXIS at 15. The panel stated, “Because this district court’s actual jury instructions, taken as a whole, adequately informed the jury of the relevant considerations, and provided a sound basis in the law to aid the jury in reaching its decision, the district court did not err . .” Id. In Moore v. United States, 1998 WL 537589, 1998 U.S. App. LEXIS 18795 (6th Cir. 1998) (unpublished), a panel affirmed the district court’s conclusion that the pattern instruction adequately described the alibi defense. The panel stated, “The district court properly rejected [the defendant’s inadequacy] claim because the trial court gave the pattern instruction for an alibi defense that is recommended in our circuit.” Moore, 1998 WL at 3, 1998 LEXIS at 9, citing Pattern Instruction 6.02. In United States v. McCall, 85 F.3d 1193 (6th Cir. 1996), the court did not review the pattern instruction as such but did cite it for authority in describing the “primary function” of an alibi instruction as being “to remind the jury as to the government’s burden of demonstrating all elements of the crime beyond a reasonable doubt, including defendant’s presence at the crime scene....” Id. at 1196, citing Pattern Instruction 6.02. The issue in McCall was whether failure to give an alibi instruction was plain error. The court noted that Sixth Circuit authority established that such a failure might be plain error. Id., citing United States v. Hamilton, 684 F.2d 380, 385 (6th Cir. 1982). However, the court went on to hold that failure to give an alibi instruction is not plain error when two conditions are met. The court stated, “[W]e hold that omission of the [alibi] instruction is not plain error, as long as the jury is otherwise correctly instructed concerning the government’s burden of proving every element of the crime charged, and the defendant is given a full opportunity to present his alibi defense in closing argument.” McCall, 85 F.3d at 1196. If requested, an alibi instruction is required when the nature of the offense charged requires the defendant's presence at a particular place or time, and the alibi tends to show his presence elsewhere at all such times. United States v. Dye, 508 F.2d 1226, 1231 (6th Cir. 1974). The instruction must tell the jurors that the government has the burden of proof and must meet the reasonable doubt standard concerning the defendant's presence at the relevant time and place. "The defense can easily backfire, resulting in a conviction because the jury didn't believe the alibi rather than because the government has satisfied the jury of the defendant's guilt beyond a reasonable doubt, and it is the trial judge's responsibility to avoid this possibility." United States v. Robinson, 602 F.2d 760, 762 (6th Cir. 1979). The use of "on or about" instructions may pose special problems in alibi cases. See Committee Commentary 2.04 and, in particular, United States v. Neuroth, 809 F.2d 339, 341-42 (6th Cir. 1987). 6.03 ENTRAPMENT (1) One of the questions in this case is whether the defendant was entrapped. (2) Entrapment has two related elements. One is that the defendant was not already willing to commit the crime. The other is that the government, or someone acting for the government, induced or persuaded the defendant to commit it. (3) If the defendant was not already willing to commit the crime prior to first being approached by government agents or other persons acting for the government, and the government persuaded him to commit it, that would be entrapment. But if the defendant was already willing to commit the crime prior to first being approached by government agents or other persons acting for the government, it would not be entrapment, even if the government provided him with a favorable opportunity to commit the crime, or made the crime easier, or participated in the crime in some way. (4) It is sometimes necessary during an investigation for a government agent to pretend to be a criminal, and to offer to take part in a crime. This may be done directly, or the agent may have to work through an informant or a decoy. This is permissible, and without more is not entrapment. The crucial question in entrapment cases is whether the government persuaded a defendant who was not already willing to commit a crime to go ahead and commit it. (5) The government has the burden of proving beyond a reasonable doubt that the defendant was already willing to commit the crime prior to first being approached by government agents or other persons acting for the government.